Filing 42

ORDER denying 37 Motion for Leave to Appeal in forma pauperis; denying 38 Motion for Certificate of Appealability. (See Entry) Signed by Judge William T. Lawrence on 12/10/2009. c/m (TMA)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA MICHAEL HICKINGBOTTOM, Petitioner, v. BRETT MIZE, Respondent. ) ) ) ) ) ) ) No. 1:09-cv-538-WTL-DML Entry Concerning Selected Matters The court, having considered the above action and the matters which are pending, makes the following rulings: 1. Mr. Hickingbottom has filed a timely notice of appeal from the denial of his petition for a writ of habeas corpus. His notice of appeal is accompanied by his request for a certificate of appealability. a. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 123 S. Ct. 1029, 1034 (2003). b. There are no circumstances discernible from the pleadings or the record which satisfy these grounds. For the reasons which accompanied the dismissal of those claims in the Entry of October 30, 2009, therefore, Mr. Hickingbottom's application for the issuance of a certificate of appealability (dkt 38) is denied. 2. The petitioner seeks leave to proceed on appeal without prepayment of the appellate fees of $455.00. An appeal may not be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. 1915; see Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962). "Good faith" within the meaning of 1915 must be judged by an objective, not a subjective, standard. See Id. There is no objectively reasonable argument which the petitioner could present to argue that the disposition of this action was erroneous. Indeed, his request to proceed on appeal in forma pauperis does not even make reference to the rationale for the disposition in this action, much less identify an arguable basis for believing that disposition to have been incorrect. In pursuing an appeal, the petitioner "is acting in bad faith . . . [because] to sue in bad faith means merely to sue on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Accordingly, his appeal is not taken in good faith, and for this reason his request for leave to proceed on appeal in forma pauperis (dkt 37) is denied. IT IS SO ORDERED. Date: 12/10/2009 _______________________________ Distribution: Michael Hickingbottom #147099 Pendleton Correctional Facility 4490 West Reformatory Road Pendleton, IN 46064 james.martin@atg.in.gov Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

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